#17 Motion For Preliminary Injunction

Case 2:17-cv-02666-JCM-GWF Document 17 Filed 11/06/17 Page 1 of 26
Marc E. Elias (D.C. Bar No. 442007)

(Pro hac vice)
1 Jacki L. Anderson (Ill. Bar No. 6312256)
(Pro hac vice)
2 PERKINS COIE LLP
700 Thirteenth Street, N.W., Suite 600
3 Washington, D.C. 20005-3960
Telephone: 202.654.6200
4 Facsimile: 202.654.6211
Email: MElias@perkinscoie.com
5 JackiAnderson@perkinscoie.com
6 Sambo Dul (Ariz. Bar No. 030313)
(Pro hac vice pending)
7 PERKINS COIE LLP
2901 N. Central Avenue, Suite 2000
8 Phoenix, Arizona 85012
Telephone: 602.351.8000
9 Facsimile: 602.648.7000
Email: SDul@perkinscoie.com
10
Bradley Schrager (Nev. Bar No. 10217)
11 Daniel Bravo (Nev. Bar No. 13078)
WOLF RIFKIN SHAPIRO SCHULMAN &
12 RABKIN, LLP
3556 East Russell Road, Second Floor
13 Las Vegas, Nevada 89120
Telephone: 702.341.5200
14 Facsimile: 702.341.5300
Email: bschrager@wrslawyers.com
15 dbravo@wrslawyers.com
16 Attorneys for Plaintiffs Nora Luna, Bilal Shabazz,
Diane Crump-Richmond, Susan Florian, and Demi
17 Falcon
18 UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
19
NORA LUNA; BILAL SHABAZZ; DIANE No. 2:17-cv-02666-JCM-CWH
20 CRUMP-RICHMOND; SUSAN FLORIAN; and
DEMI FALCON,
21 PLAINTIFFS MOTION FOR
Plaintiffs, PRELIMINARY INJUNCTION AND
22 MEMORANDUM OF POINTS AND
v. AUTHORITIES
23
BARBARA CEGAVSKE, in her official capacity (EXPEDITED TREATMENT
24 as the Nevada Secretary of State; and JOSEPH REQUESTED; RELIEF NEEDED BY
GLORIA, in his official capacity as the Clark NOVEMBER 30, 2017)
25 County Registrar of Voters,
(ORAL ARGUMENT REQUESTED)
26 Defendants.
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1 Plaintiffs, NORA LUNA, BILAL SHABAZZ, DIANE CRUMP-RICHMOND, SUSAN
2 FLORIAN, and DEMI FALCON, respectfully move the Court for a preliminary injunction1
3 pursuant to Federal Rule of Civil Procedure 65 to enjoin Defendants BARBARA CEGAVASKE,
4 Nevada Secretary of State, and JOSEPH GLORIA, Clark County Registrar of Voters, from
5 holding a special election, or otherwise enforcing Nevadas recall laws, to recall State Senators
6 Joyce Woodhouse, Nicole Cannizzaro, or Patricia Farley.
7 MEMORANDUM OF POINTS AND AUTHORITIES

8 I. STATEMENT OF CASE
9 In August 2017, recall notices were filed against Nevada Senators Joyce Woodhouse
10 (District 5, Democrat), Nicole Cannizzaro (District 6, Democrat), and Patricia Farley (District 8,
11 Independent). Despite their undisputed victories, these Senators, and voters in Districts 5, 6, and
12 8, now face the prospect of a recall election for no stated reason other than to replace the duly-
13 elected Senators with other candidates, one of whom voters rejected in favor of Senator
14 Woodhouse less than a year ago. There are no alleged irregularities in the last elections that
15 elected Senators Woodhouse, Cannizzaro, and Farley, and the Senators have not been accused of
16 impropriety, incapacity, or neglect of duties. Instead, Nevadas recall laws are being used to
17 upend the results of legitimate democratic elections in pursuit of partisan political advantage
18 allowing Republicans to regain control of the State Senate through a special recall election that is
19 certain to involve a smaller, whiter, and wealthier electorate.
20 The current recall efforts injection of extreme partisanship into Nevadas political
21 process comes at the expense of voters, particularly minority voters, rights under the First and
22 Fourteenth Amendments and the Voting Rights Act (VRA). Without preliminary injunctive
23 relief, Plaintiffs will have their casted votes nullified by an unjustified recall and will be forced
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Plaintiffs ask the Court to set an expedited briefing schedule on the motion for a preliminary
25 injunction, sufficient for hearing and ruling before November 30, 2017, due to the impending
26 issuance of the call for the recall election by Defendant Joseph P. Gloria, the Clark County
Registrar of Voters. Defendants were notified of Plaintiffs intent to seek preliminary injunctive
27 relief on November 6, 2017.
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1 to bear the undue burden of having to vote again in an off-cycle, special election to ensure that
2 their Senators can serve full terms. Plaintiffs thus respectfully request that the Court
3 preliminarily enjoin Defendants from holding a special election, or otherwise enforcing Nevadas
4 recall laws, to recall the State Senators in Districts 5, 6, and 8.
5 II. STATEMENT OF FACTS

6 A. The Current Recall Efforts
7 Plaintiffs State Senators in Districts 5, 6, and 8 face recall despite having won
8 indisputably legitimate, democratic elections and despite the absence of any allegations of
9 impropriety or incapacity. The recall notices against Senators Woodhouse, Cannizzaro, and
10 Farley do not specify a reason for the recall. See Declaration of Sambo Dul (Dul Decl.) Exs. 1-
11 3, which is filed concurrently. The Recall Committee Registration Form for each, however,
12 states that the purpose is to replace each of the Senators with another specified candidateJared
13 Glover for Senator Farley, April Becker for Senator Cannizzaro, and Carrie Beck for Senator
14 Woodhouse. Dul Decl. Ex. 4-6. Notably, the candidate seeking to replace Senator Woodhouse,
15 Carrie Buck, is the same Republican candidate Senator Woodhouse defeated just a year ago in
16 the 2016 election. Dul Decl. Ex. 7 at 2.
17 Though the recall proponents have offered no further official explanation for each of the
18 recalls at issue, they have not refuted that the motivation is purely political. The Nevada Senate
19 currently has ten Democratic members, one independent member, and nine Republican members.
20 A successful recall in two of the Districts would therefore lead to a new partisan balance in the
21 Nevada Senate. Dul Decl. Ex. 7 at 1. Indeed, Republican State Senate Minority Leader, Michael
22 Roberson, has publicly expressed his support for the recall efforts as a needed partisan response
23 to a Democratic-controlled legislature and has promised that successful recalls would place
24 Republicans back in control of the state Senate by Christmas. Dul Decl. Ex. 8 at 2, Ex. 9 at 4.
25 B. Nevadas Recall Laws and Procedures

26 The Nevada Constitution broadly provides that [e]very public officer in the State of
27 Nevada is subject . . . to recall from office by the registered voters of the state, or of the county,
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1 district, or municipality which he represents. Nev. Const. art. 2, 9; see also Nev. Rev. Stat.
2 Ann. 306.020(1) (same). Nevada laws do not limit the acceptable reasons for a recall. See
3 Batchelor v. Eighth Judicial Dist. Court, 81 Nev. 629, 632-33 (Nev. 1965) (stating that Nevada
4 requires only that the reason be stated, and does not require specificity, or the appearance of
5 a good reason or cause for removal; nor need such statement suggest misfeasance, nonfeasance
6 or malfeasance). Instead, only a statement . . . of the reasons why. . . recall is demanded,
7 the legitimacy of which the voters [in the recall election] alone decideis required. Strickland
8 v. Waymire, 235 P.3d 605, 612 (Nev. 2010) (quoting Nev. Const. art. 2, 9).
9 The recall process is initiated by filing a recall notice, which requires the signatures of
10 three individuals who voted in the election that elected the official facing recall. Nev. Rev. Stat.
11 Ann. 306.015; Nev. Admin. Code 306.005. Then, signatures from 25% of those who voted in
12 the prior election must be collected and submitted. Nev. Const., art. 2, 9. Signatures must be
13 submitted within 90 days of the recall notice. Nev. Rev. Stat. Ann. 306.015(3). Thus, the
14 deadline to submit signatures is October 31, November 9, and November 14, 2017, for recalls in
15 Districts 5, 8, and 6, respectively. Proponents of the recall effort in District 5 submitted 17,465
16 signatures to recall Senator Woodhouse on October 30, 2017. Dul Decl. Ex. 10 at 1.
17 After the submission of the required petition signatures, the County Registrar of Elections
18 confirms that the required number of signatures appear on the petition. Nev. Rev. Stat. Ann.
19 293.1276. If the petition contains sufficient signatures, the County Registrar examines a random
20 sample of at least 5% (or 500, whichever is greater) of the signatures to verify that they are from
21 qualified voters. Nev. Rev. Stat. Ann. 293.1277. If these requirements are met, the Secretary of
22 State issues a declaration of sufficiency, and 10 to 20 days later, the County Registrar issues a
23 call for a special election, which also specifies the deadline for candidates to be nominated. Nev.
24 Rev. Stat. Ann. 306.040. On Friday, November 3, 2017, the Secretary of State issued a notice
25 of sufficiency for the Petition to Recall Senator Woodhouse. See Dul Decl. Ex. 74.
26 In contrast to a regularly-scheduled general election, in which candidates and the public are
27 afforded months to prepare, a recall election must occur within 30 days of the call for a recall
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1 election. Nev. Const. art. 2, 9. Under this significantly condensed timeframe, voters must learn
2 and abide by new and ad hoc rules. Further, access to options that reduce barriers to voting,
3 including early and absentee voting, may be significantly limited. Rep. of David Damore, Dul
4 Dec. Ex. 73 (Damore Rep.) at 17-18, 21-22.
5 C. The Impact of Recall Elections in Districts 5, 6, and 8

6 Any recall elections against Senators Woodhouse, Cannizzaro, and Farley will burden,
7 abridge, and deny the fundamental right to vote. First, a recall election would cancel out and
8 nullify the votes that Plaintiffs and others cast in the 2016 election for State Senate in Districts 5
9 and 6 and the 2014 election for State Senate in District 8. A successful recall would toss out the
10 undisputed results of these prior, legitimate elections and oust Plaintiffs duly-elected officials.
11 Minority voters in particular, including Plaintiffs, are more likely than their white counterparts to
12 have their votes nullified because they disproportionately voted for Senators Woodhouse and
13 Cannizzaro in the last elections. See Dul Decl. Ex. 11; Damore Rep. at 11-12, 19-21, 27-28.
14 In addition to nullifying prior votes cast, a recall election would impose undue burdens
15 on the right to vote by requiring Plaintiffs and others to vote again in an off-cycle, special
16 election in order to remedy the nullification of their original vote and maintain support for their
17 Senators. These burdens include: (i) the informational costs of learning the details of the special
18 election; (ii) the time each voter must expend to protect a vote already cast; (iii) the economic
19 burden of needing to be excused from work, school, or other productive activities; and (iv) the
20 costs of obtaining transportation to the polling place for the special election, which can range
21 from $12.50 to $18.00 an hour. See Dul Decl. Ex. 12 at 1032-33; Ex. 13 at 2, 14-15; Ex. 14.
22 Indeed, voting is a habit and custom, and voting in an off-cycle, special election, with its
23 irregular rules, procedures, ballots, and timelines, imposes burdens and costs that are
24 considerably higher than voting in a regularly-scheduled, general election. Damore Rep. at 1, 21-
25 22. For a voter who has already turned out to vote in a presidential election, for example, the
26 marginal cost of voting in a local race held on the same day is virtually zero, but [w]hen the
27 local election is held on an entirely different day than the presidential election, the marginal cost
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1 of voting in that local race is considerably higher. Dul Decl. Ex. 15 at 414. Thus, [e]lections
2 held at odd times force potential voters to bear additional costs to participate in the political
3 process. Dul Decl. Ex. 16 at 39.
4 Further, while all voters in Districts 5, 6, and 8 would be burdened by having to vote
5 again in a special recall election, those burdens will have a disproportionately negative impact on
6 minority voters. First, minority voters in Districts 5, 6, and 8 are more likely to support Senators
7 Woodhouse, Cannizzaro, and Farley, respectively. Damore Rep. at 11-12, 19-21, 27-28.
8 Accordingly, they are more likely to bear the undue burdens of having to vote again in a
9 special recall election to ensure that their Senators can serve complete terms. Moreover, the
10 heightened burdens associated with voting again in a special recall election are even more likely
11 to deter or prevent minority voters from voting. As discussed further below, African-Americans
12 and Latinos experience significantly higher rates of poverty and unemployment, as well as lower
13 levels of median income, educational attainment, and home ownership. These factors all
14 exacerbate the obstacles to voting, particularly in off-cycle, special elections.
15 Finally, any recall elections to replace the State Senators in Districts 5, 6, and 8 would
16 threaten to upend the undisputed results of legitimate, democratic elections and impede the
17 ability of the recalled Senators to effectively govern on behalf of their constituents, diverting
18 their time, attention, and resources to defending against an unjustified recall.

19 III. ARGUMENT
20 A court should grant a preliminary injunction if the plaintiff shows: (1) he is likely to
21 succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary
22 relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public
23 interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
24 A preliminary injunction is also appropriate when a plaintiff raises serious questions as
25 to the merits and the balance of hardships tips sharply in [plaintiffs] favor, so long as a
26 plaintiff still establishes irreparable harm and that the injunction is in the public interest. Puente
27 Ariz. v. Arpaio, 821 F.3d 1098, 1103, n.4 (9th Cir. 2016) (alteration in original) (quoting All. for
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1 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under these circumstances, a
2 plaintiff need not promise a certainty of success, nor even present a probability of success, but
3 must [show] a fair chance of success on the merits. Sanchez v. Cegavske, 214 F. Supp. 3d
4 961, 968 (D. Nev. 2016) (citations omitted) (emphasis added).
5 Plaintiffs meet all the requirements for issuance of a preliminary injunction.
6 A. Plaintiffs Are Likely to Succeed on the Merits

7 1. Nevadas Recall Laws, as Applied to Recall Elections in Senate
Districts 5, 6, and 8, Would Violate the First and Fourteenth
8 Amendments
9 The Supreme Court has laid out a flexible standard to resolve challenges to election
10 laws that burden voting rights in violation of the First Amendment and the Equal Protection
11 Clause of the Fourteenth Amendment. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983);
12 Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under this standard, courts weigh the character
13 and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate against
14 the precise interests put forward by the State as justifications for the burden imposed by its
15 rule, taking into consideration the extent to which those interests make it necessary to burden
16 the plaintiffs rights. Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
17 This test is a sliding scale test, where the more severe the burden, the more compelling
18 the states interest must be. Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 729-30 (9th Cir.
19 2015). For example, a state may justify election regulations imposing a lesser burden by
20 demonstrating the state has important regulatory interests. Id. at 729-30. When voting rights
21 are subjected to severe restrictions, however, the regulation must be narrowly drawn to
22 advance a state interest of compelling importance. Burdick, 504 U.S. at 434 (citing Norman v.
23 Reed, 502 U.S. 279, 289 (1992)). And even a rational a regulation which imposes only
24 moderate burdens could well fail the Anderson balancing test when the interests that it serves are
25 minor. McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221, 1221 n.6 (4th Cir. 1995).
26 Here, Nevadas recall laws, as applied to the recall efforts in Senate Districts 5, 6, and 8,
27 violate the First and Fourteenth Amendment by burdening Plaintiffs fundamental right to vote in
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1 the absence of a legitimate, much less important or compelling, countervailing state interest.
2 a. Recall Elections in Senate Districts 5, 6, and 8 Would Deny and

Burden Plaintiffs Right to Vote
3
4 First, a recall election would nullify the votes that Plaintiffs and others cast in the 2016
5 election for State Senate in Districts 5 and 6 and the 2014 election for State Senate in District 8.
6 Plaintiffs each voted for a Senator currently subject to recall. Luna Decl. 7, Ex. A; Shabazz
7 Decl. 5, Ex. B; Crump-Richmond Decl. 4, Ex. C; Florian Decl. 7, Ex. D; Falcon Decl. 5,
8 Ex. E. A successful recall would toss out the undisputed results of these prior, legitimate
9 elections and oust Plaintiffs duly-elected officials. Courts have recognized that a new election
10 held before the term of the elected official ends cancels out the votes cast in the original election.
11 See, e.g., Curry v. Baker, 802 F.2d 1302, 1317 (11th Cir. 1986) ([A] new election would violate
12 the rights of those who voted for the rightful victor.); Bd. of Election Commrs v. Knipp, 784
13 S.W.2d 797, 799 (Mo. 1990) (recognizing that a new election tosses aside the aggregate of the
14 citizens votes); Royster v. Rizzo, 326 S.W.3d 104 (Mo. App. 2010) (holding that, absent fraud
15 and disputed voting issues, a new election would improperly deny voters rights by invalidating
16 the original election); see also Reynolds v. Sims, 377 U.S. 533, 565, 555, n. 29 (1964) (There is
17 more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to
18 pull a lever in a voting booth, as it includes the right to have the ballot counted.).
19 Second, recall elections in Senate Districts 5, 6, and 8 threaten to deny Plaintiffs the full
20 representation of the officials they elected. A successful recall would reduce Senator Woodhouse
21 and Cannizzaros terms to less than one year and Senator Farleys term to less than three years
22 far short of the four-year terms they were elected to serve. Courts have recognized that the right
23 to vote is violated when an elected official is prohibited from holding office for the full term for
24 which she was elected. See, e.g., Lynn v. Sheet Metal Workers Intl Assoc., 804 F.2d 1472,
25 1479, n. 7 (9th Cir. 1996) (Allowing the removal of an elected official for exercising his free
26 speech rights would in effect nullify a [union] members right to vote for a candidate whose
27 views he supports.), affd by 488 U.S. 347 (1989); Cartagena v. Crew, No. CV-96-3399 (CPS),
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1 1996 WL 524394, *27-28 (E.D.N.Y. Sept. 5, 1996) (denying motion to dismiss voting rights
2 claim because defendants removal of school board officials denied [voters] full representation
3 of elected officer); Tully v. Edgar, 171 Ill. 2d 297, 306 (Ill. 1996) (holding that the right to vote
4 is violated by legislation that basically eviscerates the election process by providing that, even
5 though the trustees received the majority of votes cast and counted on election day, they are
6 prohibited from holding office for the terms to which they were elected).
7 Third, a recall election would unduly burden Plaintiffs right to vote by requiring them
8 and others to vote yet again in order to remedy the cancellation of their original votes and
9 maintain support for their duly-elected Senators. These burdens include: (i) the informational
10 costs of learning pertinent details to participate in the special, off-cycle election (Luna Decl.
11 13; Shabazz Decl. 8; Crump-Richmond Decl. 9; Florian Decl. 15; Falcon Decl. 11
12 (describing the need to research the details of a recall election, having not voted in such an
13 election before); Dul Decl. Ex. 12 at 1032); (ii) the time each voter must expend to vote (Luna
14 Decl. 14; Shabazz Decl. 10; Crump-Richmond Decl. 8; Florian Decl. 14; Falcon Decl.
15 9; Dul Decl. Ex. 12 at 1032); (iii) the economic costs of needing to be excused from work,
16 school, or other commitments (Luna Decl. 10-12; Shabazz Decl. 9-10; Crump-Richmond
17 Decl. 7 (voting in the off-cycle recall election would require her to miss a day of work as a
18 substitute teacher and forego her of $90 daily pay, which would be a significant sacrifice));
19 Florian Decl. 8-13; Falcon Decl. 8; Dul Decl. Ex.12 at 1033 and (iv) transportation costs to
20 get to the polling place for the special election (Luna Decl. 10; Shabazz Decl. 11; Crump-
21 Richmond Decl. 8 (describing the need to pay for extra gas in order to drive to the polls to
22 vote); Florian Decl. 14; Falcon Decl. 9 (describing lack of access to a car on weekdays); Dul
23 Decl. Ex. 16; Ex. 13 at 2; Exs. 14-15).
24 Fourth, the burden of having to vote yet again is exacerbated because Plaintiffs must do
25 so in an off-cycle, special election under ad hoc rules and a condensed timeframe. See Dotson v.
26 City of Indianola, 514 F. Supp. 397, 402 (N.D. Miss. 1981) (recognizing the burdens imposed
27 upon . . . residents by holding special elections). Indeed, voting is a habit and custom, and
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1 voting in an off-cycle, special election, with its irregular rules, procedures, ballots, and timelines,
2 imposes burdens and costs that are considerably higher than voting in a regularly-scheduled,
3 general election. Damore Rep. at 1-2, 21-22, 35-26. For a voter who has already turned out to
4 vote in a presidential election, for example, the marginal cost of voting in a local race held on the
5 same day is virtually zero, but [w]hen the local election is held on an entirely different day
6 than the presidential election, the marginal cost of voting in that local race is considerably
7 higher. Dul Decl. Ex. 15 at 414. Thus, [e]lections held at odd times force potential voters to
8 bear additional costs to participate in the political process. Dul Decl. Ex. 16 at 39.
9
b. No State Interest Justifies the Burdens that Recall Elections in
10 Senate Districts 5, 6, and 8 Would Impose on Voting Rights
11 As Republican Governor Brian Sandoval concluded, there really [i]snt . . . a legitimate
12 reason for the recalls here, (see Dul Decl. Ex. 10 at 2)instead, the only interest served by the
13 recalls at issue is partisan political advantage. The current recall efforts take advantage of
14 Nevadas broad recall laws to upend the results of legitimate, undisputed elections in a
15 transparent effort to regain Republican control of the State Senate through a special election that
16 is certain to involve a smaller, whiter, and wealthier electorate. See Dul Decl. Ex. 7, Ex. 8 at 2,
17 Ex. 17 at 3, Ex. 18; Damore Rep. at 1, 6, 9, 12, 22. The Recall Committee Registration Forms
18 state only one purpose for the current recall efforts: to replace each Senator with a specified
19 Republican candidate. Dul Decl. Exs. 4-6. There are no alleged irregularities in the previous
20 elections for State Senate in Districts 5, 6, and 8, and the elected Senators have not been accused
21 of any misconduct, neglect of duties, betrayal of public trust, or any other incapacity or
22 wrongdoing. Recall proponents, which include former Republican Assemblyman Stephen
23 Silberkraus, Dul Decl. Ex. 19, have not refuted the allegation that the sole motivation for the
24 recalls is Republican political advantage. Indeed, Republican State Senate Minority Leader,
25 Michael Roberson, has publicly expressed support for the recall efforts as a needed partisan
26 response to a Democratic-controlled legislature and has promised that successful recalls would
27 place Republicans back in control of the state Senate by Christmas. Dul Decl. Ex. 8 at 2, Ex. 9
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1 at 4.
2 However, political patronage is not a legitimate state interest, much less a compelling
3 or important one. Graves v. McElderry, 946 F. Supp. 1569, 1581 (W.D. Okl. 1996) (citing Rutan
4 v. Republican Party of Ill., 497 U.S. 62 (1990)) (holding a states desire to promote, in any
5 manner available, the Democratic party candidates running for political office . . . is not a
6 legitimate state interest); see also San Francisco Cnty. Democratic Cent. Comm. v. March
7 Fong Eu, 826 F.2d 814, 831 (9th Cir. 1987) ([A] state has no interest in [regulations] for the
8 purpose of helping [political parties] win or retain voter support.).
9 Further, the abuse of Nevadas recall laws for political gain is inconsistent with the
10 original purpose of the laws. Nevadas recall laws were meant to be an additional check on
11 elected officials. Dul Decl. Ex. 20 at 11-12. However, there is no evidence to suggest that
12 framers, adopters, and early users of the recall measure saw it as a mechanism to rerun an
13 ordinary election in which there had been no dishonesty and after which there had been no
14 evidence of special interest group capture. Strickland, 235 P.3d at 612 (citation omitted).
15 According to Governor Sandoval, the recalls efforts here are unprecedented and dangerous,
16 exhibiting an escalation of tactics, which encourages mean-spiritedness. Dul Decl. Ex. 10 at
17 2.
18 Because Defendants, and the State of Nevada, have no legitimate, much less compelling
19 or important, interest in recall elections in Senate Districts 5, 6, and 8, the resulting abridgement
20 and burden on Plaintiffs right to vote cannot be justified. See, e.g., Graves, 946 F. Supp. at 1581
21 (holding that when there is not a legitimate state interest, the Court must hold there is no burden
22 upon [] citizens First and Fourteenth Amendment rights which would be justified by such
23 classification) (emphasis added). Further, even assuming arguendo that Defendants could
24 advance a legitimate state interest to justify recalls in Senate Districts 5, 6, and 8, the application
25 of Nevadas recall laws to permit recall elections in the Districts at issue would still be
26 unconstitutional because application of the recall laws to Senate Districts 5, 6, and 8 are not
27 narrowly tailored to serve any interest but partisan advantage. Legislation that nullifies the votes
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1 cast in a valid election and removes the elected trustees from office midterm is not necessary to
2 or narrowly tailored to achieve the legislatures presumed goal when [t]here is no suggestion
3 that the currently elected trustees are incompetent. Tully, 171 Ill. 2d at 311-312.
4
2. Nevadas Recall Laws, As Applied to Recall Elections in Senate
5 Districts 5, 6, and 8, Violate Section 2 of the VRA
6 Section 2 of the VRA prohibits the enforcement of a voting qualification or prerequisite
7 to voting or standard, practice, or procedure that has the purpose or result of denying or
8 abridging the right to vote on account of race, color, or membership in a language minority
9 group.2 52 U.S.C. 10301; see also Gonzalez v. Ariz., 677 F.3d 383, 405 (9th Cir. 2012)
10 (recognizing that a Section 2 claim can be proven by showing discriminatory results), affd sub
11 nom. Ariz. v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013). Section 2 is violated if,
12 under the totality of the circumstances, racial minorities have less opportunity than other
13 members of the electorate to participate in the political process and to elect representatives of
14 their choice. 52 U.S.C. 10301(b).
15 [I]n examining the totality of the circumstances to determine whether a challenged
16 voting practice results in [discrimination] on account of race, courts consider how the
17 challenged practice interacts with social and historical conditions to cause an inequality in the
18 opportunities enjoyed by [minority] and white voters to elect their preferred representatives.
19 Farrakhan v. Wash., 338 F.3d 1009, 1016 (9th Cir. 2000) (citation and internal quotations
20 omitted); see also Sanchez, 214 F. Supp. 3d at 972 (requiring that the challenged voting practice
21 imposes a disparate burden on the electoral opportunities of minority as compared to
22
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23 Here, recall elections for State Senate in Districts 5, 6, and 8 constitute voting standard[s],
practice[s], or procedure[s] subject to Section 2 of the VRA. See, e.g., Cartagena, 1996 U.S.
24 Dist. LEXIS 20178 (holding that the suspension of elected board members in favor of appointed
trustees could constitute a voting practice or procedure); Henderson v. Harris, 804 F. Supp. 288,
25 293 (M.D. Ala. 1992) (holding that the calling of a special election was a change in a standard,
26 practice or procedure with respect to voting); see also Chisom v. Roemer, 501 U.S. 380, 403
(1991) (citation omitted) (stating that the VRA should be read to provide[] the broadest
27 possible scope).
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1 nonminority voters; and the burden works in tandem with historical, social, and political
2 conditions to produce a discriminatory result). It is this interaction that provides the causal
3 connection necessary to demonstrate a Section 2 violationplaintiff need not show that the
4 challenged voting practice caused the disparate impact by itself. Gonzalez v. Ariz., 624 F.3d
5 1162, 1193 (9th Cir. 2010) (citation omitted). Likewise, plaintiffs need not show that the practice
6 makes voting impossible for minoritiesonly that it makes voting disproportionately more
7 burdensome. Section 2 thus prohibits not only the outright denial, but also the abridgement
8 of the right to vote. 52 U.S.C. 10301(a).
9 In evaluating a VRA claim, courts must engage in a searching practical evaluation of the
10 past and present reality which is intensely fact-based and localized. Id. (citations omitted);
11 see also League of Women Voters of N.C. v. N.C.(LOWV), 769 F.3d 224, 241 (4th Cir. 2014)
12 (Clearly, an eye toward past practices is part and parcel of the totality of the circumstances.).
13 The number of voters denied equal electoral opportunity is not relevant; instead what matters
14 is simply that any minority voter is being denied equal electoral opportunities. LOWV, 769
15 F.3d at 244 (quoting 52 U.S.C. 10301(a)). Here, recall elections in Senate Districts 5, 6, and 8
16 would: (1) impose disproportionate burdens on the electoral opportunities of Plaintiffs and other
17 minority voters in those districts; and (2) these burdens interact with historical, social, and
18 political conditions to cause a discriminatory result, in violation of Section 2 of the VRA.

19
a. Recall Elections in Districts 5, 6, and 8 Would Impose A
20 Disparate Burden on Minority Voters Electoral Opportunities
21 In examining whether minority voters are disparately impacted, the Court must account
22 for both the likelihood that minority voters will face a given burden and their relative ability to
23 overcome the burden. Sanchez, 214 F. Supp. 3d at 972. This analysis involves an
24 acknowledgement of the reality that a burden that may be insignificant to one demographic
25 may be great for another. Id. (citing League of Women Voters, 769 F.3d at 245). For example, a
26 disparate burden is found when minority voters have fewer opportunities and greater difficulty
27 than majority voters reaching polling locations, due to transportation and cost, id. at 972, and
28
12
1 when a seemingly neutral voter identification requirement disproportionately impact[s] the
2 poor, who are disproportionately minorities, Veasey v. Abbott, 830 F.3d 216, 251 (5th Cir.
3 2016). Here, minority voters are more likely to bear the burdens imposed by recall elections in
4 Districts 5, 6, and 8, and are less likely to overcome those burdens than their white counterparts.
5 First, minority voters disproportionately voted for Senators Woodhouse and Cannizzaro
6 in 2016 and disproportionately support all three Senators. Luna Decl. 8-9; Shabazz Decl. 7;
7 Crump-Richmond Decl. 6; Florian Decl. 6; Falcon Decl. 6; Damore Rep. at 11-12, 19-21,
8 27-28; Dul Decl. Ex. 11; see also Dul Decl. Ex. 21 at 7, Ex. 22 at 14-15, Ex. 23 at 7, Ex. 24 at 2,
9 Ex. 25, Ex. 26 at 3 (describing disproportionately high minority support for Democratic
10 candidates in Nevada). Thus, minority voters are more likely than their white counterparts to
11 have their votes nullified by recall elections and more likely to be forced to bear the undue
12 burden of having to vote again in a recall election to ensure that their Senators serve full terms.
13 See, e.g., LOWV, 769 F.3d at 245 (holding law would disproportionately impact minority voters
14 when African-American voters disproportionately voted out of precinct and that the prohibition
15 on counting out-of-precinct provisional ballots will disproportionately affect [African American]
16 voters) (citation omitted).
17 Further, in addition to being more likely to face the cancellation of their prior votes and
18 to be forced to vote again in an off-cycle, special recall election to remedy that nullification,
19 minority voters are less likely to be able to overcome the associated burdens. See, e.g., Mo. State
20 Conference of the NAACP v. Ferguson-Florissant Sch. Dist., 201 F. Supp. 3d 1006, 1070 (E.D.
21 Mo. 2016) (There is ample evidence that the costs of voting are higher and the benefits lower
22 for African American residents . . . as compared to white residents.) (emphasis added); id. at
23 1079-80 (Off-cycle elections [] enhance the opportunity for discrimination, because they tend
24 to generate unusually low voter turnout generally and disproportionately low turnout among
25 African American voters.); U.S. v. Vill. of Port Chester, 704 F. Supp. 2d 411, 444 (S.D.N.Y.
26 2010) (holding city governments practice of holding local elections off-cycle in March . . .
27 enhance[s] the opportunity for discrimination against the Hispanic voting population); see also
28
13
1 Sanchez, 214 F. Supp. 3d at 972. Specifically, courts have recognized that holding local
2 elections at a time when only the most engaged and politically astute citizensthose citizens
3 who feel the most enfranchisedare likely to vote [i.e. off-cycle elections] will almost certainly
4 result in the diminished influence of groups who feel generally excluded from the political fabric
5 of the community. Vill. of Port Chester, 704 F. Supp. at 444; Mo. State Conference of the
6 NAACP, 201 F. Supp. 3d at 1080 (same); see also Zoltan Hajnal, AMERICAS UNEVEN
7 DEMOCRACY: RACE, TURNOUT, AND REPRESENTATION IN CITY POLITICS at 515 (2009) (Study
8 after study of the American electorate has found that individuals with ample resources vote much
9 more regularly than those with fewer resources[including] the poor [and] racial and ethnic
10 minorities.); Dul Decl. Ex. 27 at 27-30; Luna Decl. 12-13; Shabazz Decl. 8; Crump-
11 Richmond Decl. 9; Florian Decl. 12-13; Falcon Decl. 11. As detailed in Section III(A)(b)(i-
12 ii, v) below, African-American and Latino voters in Nevada, and in Senate Districts 5, 6, and 8 in
13 particular, have been excluded from the political fabric of the community and experience
14 significantly higher rates of poverty and unemployment, as well as lower levels of educational
15 attainment, home ownership, and access to transportation. These factors exacerbate the obstacles
16 to voting, particularly in off-cycle, special elections that are subject to ad hoc rules and a
17 significantly condensed time frame.
18 b. Recall Elections in Districts 5, 6, and 8 Would Interact with

Historical, Social, and Political Conditions to Produce a
19 Discriminatory Result
20 In determining whether a challenged practice works together with the totality of the
21 circumstances, including social and historical conditions, to deny minorities equal opportunities,
22 courts look to nine non-exclusive factors, known as the Senate Factors:
23 Factor 1: History of official and voting-related discrimination in the jurisdiction;

Factor 2: Extent to which voting in the jurisdictions elections is racially polarized;
24 Factor 3: Extent to which the jurisdiction has used voting practices or procedures that
tend to enhance the opportunity for discrimination against the minority group;
25 Factor 4: Exclusion of members of the minority group from candidate slating processes;
Factor 5: Extent to which minority group members bear the effects of past discrimination
26 in areas such as education, employment, and health, which hinder their ability to
participate effectively in the political process;
27 Factor 6: Use of even subtle racial appeals in political campaigns;
28
14
1 Factor 7: Extent to which members of the minority group have been elected to public
office in the jurisdiction;
2 Factor 8: Evidence demonstrating that elected officials are unresponsive to the
particularized needs of the members of the minority group; and
3 Factor 9: Extent to which policies underlying the use of the contested practice is tenuous.
4 Farrakhan, 338 F.3d at 1015-16; see also Gingles, 478 U.S. at 36-37. [T]here is no
5 requirement that any particular number of factors be proved, or that a majority of them point one
6 way or the other. Gonzalez, 677 F.3d at 406 (quoting Gingles, 478 U.S. at 45).
7 Senate Factors 1, 5, and 8 are given particular weight in examining whether the
8 disproportionate burdens minority voters face are caused by or linked to a jurisdictions
9 historical, social, and political conditions. See Sanchez, 214 F. Supp. 3d at 972. That said, other
10 factors may also be relevant and may be considered. Id. (citation omitted). Here, Nevadas
11 historical and ongoing discrimination has resulted in a host of socioeconomic disparities for
12 minorities, including in terms of poverty, employment, education, and home ownership, which
13 make the burdens of having to vote again, and in an off-cycle, special election, more costly.
14 Indeed, consideration of eight of the nine Senate Factors supports the conclusion that the burdens
15 imposed by Nevadas recall laws, as applied to the recalls here, work in tandem with historical,
16 social, and political conditions to produce a discriminatory result for minority voters.
17 i. History of Discrimination and Discriminatory Use of

Voting Practices (Senate Factors 1 and 3)
18
19 Nevada has a history of official discrimination that has impacted the ability of minorities
20 to vote or otherwise participate in the democratic process.
21 Nevadas history of discrimination in voting and civic participation predates its
22 statehood. In 1861, Nevadas First Territorial Legislature prohibited African-Americans and
23 other minorities from voting by restricting the franchise to white men and prohibited coloreds,
24 including African-Americans, Native Americans, and Asians, from appearing as witnesses
25 against white men. Dul Decl. Ex. 29 at 17. When Nevada became a state in 1864, African-
26 Americans and other minorities were denied the right to vote under the Nevada Constitution. Id.
27 In addition, in 1987, a Republican Assemblyman in the Nevada legislature sponsored an
28
15
1 English-Only bill that would designate English as the official language of the State and limit
2 voting rights of non-English speakers, which would disproportionately impact Hispanic and
3 Asian voters. Dul Decl. Ex. 30 at 50. Additionally, multi-member State Senate Districts were
4 employed until recently, Damore Rep. at 28-29, which operate to minimize or cancel out the
5 voting strength of racial minorit[ies]. . . . Graves v. Barnes, 405 U.S. 1201, 1202 (1972).
6 Nevada also has a history of discrimination in education. After passage of the Civil War
7 Amendments, in 1872, the Nevada Supreme Court upheld racially-segregated public schools.
8 Segregation continued in the Nevada educational system into the 1970s. For example, the
9 racially-diverse Clark County School District maintained segregated elementary schools until the
10 Ninth Circuit found the practice unconstitutional in 1972. See Kelly v. Guinn, 456 F.2d 100 (9th
11 Cir. 1972). Educational discrimination also extended to language minorities. In 2008, a
12 superintendent of Nevadas Esmeralda County School District prohibited students from speaking
13 Spanish while riding on school buses. Dul Decl. Ex. 31
14 Housing segregation has also been a longstanding issue for Nevada. In 1959, the State
15 Advisory Committee to the U.S. Commission on Civil Rights found that public housing in Las
16 Vegas and Reno discriminated against African-Americans. Dul Decl. Ex. 32. Specifically, the
17 Las Vegas Housing Authority maintained the policy of segregation in some of the authoritys
18 projects. Dul Decl. Ex. 33 at 479. Such housing segregation continued in Las Vegas and Reno
19 up until 1971, stopped only through legislation passed by Nevadas legislature under the threat of
20 federal court action. See Nev. Rev. Stat. Title 10, Chapter 118.
21 Finally, Nevada has a history of discrimination in healthcare and economic opportunities.
22 For example, African-American individuals were barred from receiving healthcare at the
23 Veterans Administration Hospital in Reno, which remained segregated until 1940. Dul Decl. Ex.
24 32 at 10. In terms of economic opportunities, in 1931, the Nevada legislature barred non-citizen
25 foreign nationals from owning or operating machines or casinos in Clark County, effectively
26 excluding them from advancement in the gaming industry for 30 years. Dul Decl. Ex. 34 at 102.
27
28
16
1 ii. On-Going Effects of Discrimination and Lack of

Responsiveness (Senate Factor 5 and 8)
2
3 The effects of this historic and systemic discrimination persist today, resulting in
4 significant racial disparities across key social and economic indicators, including with respect to:
5 Poverty: A disproportionate number of minorities in Nevada, including in Districts 5, 6,

and 8, live in poverty. Damore Rep. at 8, 30-31. Overall, 25.6% of African-Americans
6 and 20.8% of Latinos lived below the poverty line in 2015 in Nevada. Dul Decl. Ex. 35 at
1. In comparison, the poverty rate for whites was just 7% in 2016. Dul Decl. Ex. 36 at 1.
7 In District 8, the percentage of African-Americans and Latinos below the poverty line is
12.2% and 14.9% respectively, compared to 7.6% of whites. Dul Decl. Ex. 37 at SD8-15.
8 In District 5, 16.5% of African-Americans and 11.5% of Latinos live below the poverty
line, compared to only 8.3% of whites. Dul Decl. Ex. 38 at SD5-15. In District 6, 19.8%
9 of African-Americans and 18.6% of Latinos live below the poverty line, compared to
only 9.1% of the white population. Dul Decl. Ex. 39 at SD6-15.
10
Median Income: In 2016, the Census Bureau reported a median income of $45,836 for
11 Hispanics and $37,296 for African-Americans, compared to $61,165 for whites in
Nevada. Thus, African-Americans earn nearly 40% less than whites, and Hispanics earn
12 nearly 25% less than whites. In District 6, data from the 2010 Census and 2013 American
Community Survey show Hispanic and African-American households earned a median
13 income of $50,500 and $46,000, respectively, while white households earned $60,400.
Dul Decl. Ex. 75. In District 8, the median income for Hispanic and African-American
14 households was $53,000 and $49,300, respectively, while white households earned
$71,100. Dul Decl. Ex. 76. In District 5, median income for Hispanic and African-
15 American households was $59,200 and $49,600, respectively, while $64,100 for white
households. Dul Decl. Ex. 40 at 5.
16
Education: In 2014, only 59.2% of Hispanic students who graduated from Nevadas
17 public high schools enrolled in college, compared to 68.8% of white students. Dul Decl.
Ex. 41. Only one-third of Hispanic students who are English language learners even
18 graduate from high school. Id. Similar disparities exist in Districts 5, 6, and 8. According
to the 2010 Census and 2013 American Community Survey, in District 6, 74.2% of
19 Hispanic females and 74.5% of Hispanic males have a high school diploma, compared to
92.9% of white females and 94% of white males. Dul Decl. Ex. 77. In District 5, 76.2%
20 of Hispanic females and 74.8% of Hispanic males have a diploma, as compared to 93.9%
of white females and 92.9% of white males. Dul Decl. Ex. 43 at 7-8. In District 8, these
21 numbers are 75.5% for Hispanic females and 74.9% for Hispanic males, compared to
95% for white females and 95.6% for white males. Dul Decl. Ex. 42 at 7-8.
22
Homeownership: According to the Pew Research Center, in 2014, 61% of whites in
23 Nevada owned a home. Dul Decl. Ex. 44 at 2. In contrast, only 28% of African-
Americans and 43% of Hispanics in Nevada owned a home in 2014. Id.
24
Unemployment: The unemployment rate in Nevada is the second highest in the country
25 for Hispanics, Dul Decl. Ex. 78, and the third highest for African-Americans. Dul Decl.
Ex. 79. According to the United States Department of Labor, in Nevada in 2015, the
26 unemployment rate was 13.5% for African-Americans, id., and 8% for Latinos. Dul Decl.
Ex. 78. In comparison, it was only 5% for whites. Dul Decl. Ex. 45 at 2. As the Nevada
27 Advisory Committees 2012 report noted, [e]qual employment opportunity continues to
be a significant civil rights issue in the state. Dul Decl. Ex. 28 at 4.
28
17
1 Government Employment: Minorities are underrepresented in government employment

in Nevada. For example, Hispanics make up just 9% of Nevadas teachers, despite a state
2 student body that is 39% Hispanic. Dul Decl. Ex. 46 at 3. By 2013, minority students
comprised 63% of Nevadas schools, but only 19% of teachers were minorities. Dul Decl.
3 Ex. 47 at 1. Hispanics and African-Americans are also underrepresented in local policing,
making up 11.6% and 6.6% of the Las Vegas Metro Police force, respectively, despite
4 being a combined 41.5% of Clark Countys population. Dul Dec. Ex. 48 at 1-2.
5 Healthcare: In 2014, 26% of Hispanics and 14% of African-Americans were uninsured,

compared to 10% of whites. Dul Dec. Ex. 44. In District 8, as of 2015, 19% of African-
6 Americans and 25.4% of Latinos were uninsured, compared to 10% of whites. Dul Decl.
Ex. 37 at SD8-23. In District 5, 18.3% of African-Americans and 21% of Latinos were
7 uninsured, compared to 11.7% of whites. Dul Decl. Ex. 38 at SD5-23. In District 6,
12.5% of African-Americans and 26.8% of Latinos were uninsured, compared to 11.8%
8 of whites. Dul Decl. Ex. 39 at SD6-23. There are also disparities in prenatal care. The
percentage of white mothers receiving prenatal care in their first trimester in Clark
9 County was 81.3%, compared to only 61.3% of Hispanic mothers and 62.3% of African-
American mothers. Dul Decl. Ex. 49 at 34-35.
10
11 These social and economic disparities, individually and cumulatively, make it harder for
12 minorities to overcome barriers to voting, particularly heightened barriers associated with voting
13 (again) in a special, off-cycle recall election. See e.g. Zoltan Hajnal, AMERICAS UNEVEN
14 DEMOCRACY: RACE, TURNOUT, AND REPRESENTATION IN CITY POLITICS 515 (2009) (Study after
15 study of the American electorate has found that individuals with ample resources vote much
16 more regularly than those with fewer resources[including] the poor [and] racial and ethnic
17 minorities.); Ex. 27 at 27-30 (recognizing the greater socioeconomic barriers to voting of
18 Hispanic individuals, including but not limited to their inability to take time off work or a lack
19 of transportation to the polls); Ex. 50 at 7, 16 (concluding that homeowners are more likely to
20 vote); Ex. 51 at 1 (concluding that people in bad health are less likely to vote). Further, some of
21 Nevadas elected officials have not been responsive to these disparities and minorities needs,
22 including refusing to acknowledge discrimination. See Dul Decl. Ex. 52 at 1 (Nevada
23 Assemblywoman Michele Fiore declared the end of racism in America during a hearing over a
24 voter identification bill.); see also Bailey v. Vining, 514 F. Supp. 452, 461 (M.D. Ga. 1981)
25 (The court cannot conscientiously find these [elected] officials to be responsive to black needs
26 when they refuse to acknowledge awareness of even past discrimination against blacks.).
27
28
18
1 iii. Racially Polarized Voting (Senate Factor 2)
2 Voting in Nevada, and in Districts 5, 6, and 8, is racially polarized, as a high percentage
3 of minorities support Democratic candidates, and a majority of white voters support Republican
4 candidates. Damore Rep. at 11-12, 19-21, 27-28. For example, in the most recent presidential
5 election, 56% of whites in Nevada voted for Donald Trump, and 55% voted for Republican
6 Senate candidate Joe Heck. Dul Decl. Ex. 53 at 3.
7 In contrast, in 2012, President Obama won the votes of 80% of Nevadas Latinos. Dul
8 Decl. Ex. 23 at 7; see also Ex. 22 at 15 (In 2012, President Obama won Nevada by seven points
9 with a huge assist from the increase in voters of color, a group that grew by 5 points to 36
10 percent of the states voters, which was enough to offset a 4-point decline in white support.).
11 Minorities also overwhelmingly supported the Democratic Party in 2008. Dul Decl. Ex. 21 at 7
12 (Racial minorities were responsible for winning. . . Western states [including Nevada]
13 designated as battlegrounds in 2008 for Democratic candidates.).
14 In the 2016 presidential race, Secretary Clintons victory in Nevada over President
15 Trump is attributed to her strong support from the Hispanic community. Dul Decl. Ex. 54 at 4
16 (Latinos may be the one group in the new America that made a difference for Clinton. . . in
17 Nevada.); Ex. 55 at 2 (In Nevada, Latino turnout propelled Democrats in Clark County the
18 population center thats home to Las Vegas to a record-breaking close on Friday, driving up
19 the Democratic lead in early ballots cast to 72,000.); Ex. 24 at 2 (Secretary Clinton
20 overwhelmingly won Nevadas Latino vote by a 2-to-1 margin over Donald Trump, according
21 to exit polls conducted during the Nov. 8 election.); Ex. 26 at 3 (Hillary Clinton won the state
22 by 2.4% of the overall vote, but with 60% of the Hispanic vote.).
23 Nevadas African-American population also disproportionately supports Democratic
24 candidates. In 2012, for example, the majority of the states African-American population
25 belonged to the Democratic Party. See Dul Decl. Ex. 25 at 17 (In 2012, the majority of blacks in
26 Nevada are still members of the Democratic Party.). Moreover, in the 2016 presidential
27 election, 81% of African-Americans voted for Secretary Clinton. Dul Decl. Ex. 26 at 3.
28
19
1 Similarly, voting in Districts 5, 6, and 8 is racially polarized, as the majority of minorities
2 support Democratic candidates. Dul Decl. Ex. 11 (While Cannizzaro performs well across a
3 wide range of demographic groups, she does particularly well with voters of color. Cannizzaro
4 dominates her Republican opponents by at least 50 points with both Hispanic and African
5 American voters in the district.); Damore Rep. at 11-12, 19-21, 27-28.
6 iv. Racial Appeals in Political Campaigns (Senate Factor 6)
7 Nevadas elections have been marred by subtle and overt racial appeals. For example, in
8 2010, Republican U.S. Senate candidate Sharron Angles campaign ran a political advertisement
9 featuring Latino men carrying weapons and appearing in mug shots, spurring allegations of
10 appeals to racism. Dul Decl. Ex. 56 at 1. In 2016, former aides of Republican U.S. Senate
11 candidate Joe Heck made attacks against the Democratic candidate, now-Senator Catherine
12 Cortez-Masto, relating to her Latina heritage. Dul Decl. Ex. 57 at 4. For example, one former
13 adviser stated that Senator Cortez-Masto is about as Mexican as I am. Id. Another former
14 adviser described Senator Cortez-Mastos reference to her heritage as Hispandering. Id. at 5.
15 Also in 2016, the Chairman of the Republican Party of Nevada criticized the decision to keep a
16 polling station legally opened after hours when most of the individuals in line were Hispanic,
17 taking issue with allowing a certain group to vote. Dul Decl. Ex. 58.
18 Nevadas elected officials have also made racial appeals. For example, in 2014, the
19 Republican Assembly Speaker-Elect Ira Hansen resigned due to his past support for the
20 Confederate flag and description of African-Americans as lack[ing]. . .gratitude for the end of
21 slavery. Dul Decl. Ex. 59 at 2. Also, in 2015, Nevada Assemblywoman Michele Fiore referred to
22 an African-American colleague as colored. Dul Decl. Ex. 60 at 2, Ex. 61 at 5.
23 v. Lack of Minority Elected Officials (Senate Factor 7)
24 Members of minority groups in Nevada have been significantly underrepresented among
25 elected officials, including in the state legislature and in Districts 5, 6, and 8. See Dul Decl. Ex.
26 23 at 3 ([T]he number of Latinos elected to office remains well below the communitys share of
27 Nevadas population.). For example, in 2013, only one Latino . . . serving in the Nevada
28
20
1 Legislature represent[ed] a district with a Latino voting age population that is less than 20%. Id.
2 In 2015, there were only nine Latino members of the state legislature. Dul Decl. Ex. 62 at 1. In
3 2016, Nevada ranked third in the nation for underrepresentation of Hispanics in the state
4 legislature and in Congress, with 14% of the state legislature being Hispanic and 10% African-
5 American. Dul Decl. Ex. 63 at 2. Up until 2006, eleven African-Americans had served in the
6 Nevada Assembly, with only four had served in the Nevada Senate. Dul Decl. Ex. 64 at 170. In
7 2009, the Nevada Assembly was 11% African-American, and the Nevada Senate was 14%. Dul
8 Decl. Ex. 65. No minority has been elected State Senator in Districts 5, 6, or 8.
9 The dearth of minority elected officers exists despite increasing diversification of
10 Nevadas population over the past decades, including in Districts 5, 6, and 8. See Dul Decl. Ex.
11 66 at 1 (Since the early 1980s, Nevada has experienced significant demographic change,
12 becoming considerably more diverse, with Nevadas Latino population. . . account[ing] for
13 much recent demographic and social change.). Indeed, Nevada has been described as the
14 fastest growing Latino population in the West. Dul Decl. Ex. 67 at 1. For example, from 2000
15 to 2010, the Latino population increased by around 82%. Dul Decl. Ex. 66 at 1. As of 2016,
16 Nevada was 28.5% Hispanic and 9.6% African-American. Dul Decl. Ex. 68 at 1.
17 Specifically, the minority population in Clark County, where Districts 5, 6, and 8 lie,
18 increased by 1.5% from 2010 to 2015. Dul Decl. Ex. 69 at 1. This growing diversity within Clark
19 County is significant for electoral outcomes, as Clark County holds more than two-thirds of
20 Nevadas active voters. Dul Decl. Ex. 70 at 1; see also Ex. 71 at 2 (attributing Nevadas status
21 as the nations fastest growing state to Democratic-leaning demographic groups: Hispanics,
22 Asians and African-Americans, with Nevadas African-American population growing by 58
23 percent and Hispanic population growing by 82 percent from 2000 to 2010). The Senate Districts
24 at issue have also seen an increase in minorities. For example, by 2015, District 5 was 20%
25 Hispanic, when it was only 19.3% in 2013 and 17.35% in 2011. Dul Decl. Ex. 38 at SD5-4.
26 District 6s Hispanic population increased from 19.06% in 2011, and 20.5% in 2013, to 21.4% in
27 2015. Dul Decl. Ex. 39 at SD6-4. In 2013, District 8 was composed of 15.3% Hispanic
28
21
1 individuals and 6.8% African-Americans, by 2015, this number increased to 16.9% and 7.3%,
2 respectively. Dul Decl. Ex. 37 at SD8-4.
3 vi. Tenuous Justifications (Senate Factor 9)
4 As discussed in Section III.A.1.b above, there is no legitimate state interest to justify the
5 disparate burdens imposed by recall elections in Districts 5, 6, and 8. The only interest served by
6 such recall elections is partisan political advantage. Indeed, this abuse of Nevadas recall laws
7 for political gain is inconsistent with the original purpose of those laws. Accordingly, any
8 purported justifications for recall elections in the Districts would be highly tenuous.
9 B. Plaintiffs Will Suffer Irreparable Harm Absent An Injunction

10 This Court, and others, has recognized that the deprivation of a constitutional right,
11 including the right to vote, is an irreparable injury. See, e.g., Sanchez, 214 F. Supp. 3d at 976
12 (citations omitted) (It is clear that abridgement of the right to vote constitutes an irreparable
13 injury.); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (It is well established that
14 the deprivation of constitutional rights unquestionably constitute irreparable injury.) (citation
15 omitted); LOWV, 769 F.3d at 247 (Courts routinely deem restrictions on fundamental voting
16 rights irreparable injury.); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (A
17 restriction on the fundamental right to vote . . . constitutes irreparable injury.) (citing Williams
18 v. Salerno, 792 F.2d 323, 326 (2d Cir.1986)); Wash. Assn of Churches v. Reed, 492 F. Supp. 2d
19 1264, 1271 (W.D. Wash. 2006) (finding irreparable harm, as the Court does not consider a
20 persons right to vote a mere detail to be so easily dismissed); Cardona v. Oakland Unified
21 Sch. Dist., Cal., 785 F. Supp. 837, 840 (N.D. Cal. 1992) (Abridgement or dilution of a right so
22 fundamental as the right to vote constitutes irreparable injury.).
23 Here, any special recall elections in Senate Districts 5, 6, and 8 effectively nullify the
24 legitimately-cast votes of Plaintiffs and many other Nevadas citizens who voted in the prior
25 elections for State Senate. Such recall elections would also impose significant and undue burdens
26 on the right to vote, disproportionately deter and prevent minorities from participating in the
27 political process, and interfere with the ability of the duly-elected State Senators to effectively
28
22
1 represent Plaintiffs and other constituents. Indeed, once the [recall] election occurs, there can be
2 no do-over and no redress to the voters, including Plaintiffs. LOWV, 769 F.3d at 247. These
3 consequences indisputably constitute irreparable harm.
4 C. The Public Interest And Equities Sharply Favor A Preliminary Injunction

5 As a general matter, [t]he public interest and the balance of the equities favor
6 prevent[ing] the violation of a partys constitutional rights. Ariz. Dream Act Coal. v.
7 Brewer, 818 F.3d 901, 920 (9th Cir. 2016) (citation omitted). This proposition is particularly true
8 when voting rights are at issue because [t]he public has a strong interest in exercising the
9 fundamental political right to vote, and in permitting as many qualified voters to vote as
10 possible. LOWV, 769 F.3d at 247 (citations omitted); see also Wash. Assn of Churches v. Reed,
11 492 F. Supp. 2d 1264, 1271 (W.D. Wash. 2006) (stating that the public interest weighs strongly
12 in favor of letting every eligible resident . . . register and cast a vote); Badillo v. Stockton, No.
13 S-87-1726, 1988 U.S. Dist. LEXIS 17601, at *23 (E.D. Cal. Mar. 10, 1988) (holding that the loss
14 of the ability to elect implicates a fundamental constitutional right that tips the balance of
15 relative hardships in plaintiffs favor). The same is true for VRA violations. See, e.g., Sanchez,
16 214 F. Supp. 3d at 976 (The public interest is served by the enforcement of the VRA and the
17 inclusion of protected classes in the political process.) (citations omitted).
18 As noted, if not enjoined, recall elections in Senate Districts 5, 6, and 8 would nullify the
19 legitimately-cast votes of Plaintiffs and other voters, interfere with the ability of the duly-elected
20 State Senators to effectively represent their constituents, and impose undue burdens on the right
21 to vote, including disproportionately deterring and preventing minorities from participating in the
22 political process. See, e.g., Bowes v. Ind. Secy of State, 837 F.3d 813, 821 (7th Cir. 2016)
23 (citation omitted) (recognizing the states significant interest in governing without disruption
24 in denying a special election because opening up the judiciary to a special election would be
25 highly disruptive to the administration of justice, as elected judges would have to take time
26 away from their cases and dedicate resources to another campaign).

27
28
23
1 Moreover, enjoining the recall elections would alleviate costsestimated to be $150,000
2 for the government, Dul Decl. Ex. 72 at 2and administrative burdens on the State by avoiding
3 unnecessary, and likely unlawful, recall elections. See Bd. of Educ. v. Memphis City Bd. of Educ.,
4 No. 11-2101, 2013 U.S. Dist. LEXIS 111394, at *28 (W.D. Tenn. Aug. 7, 2013) (holding the
5 equities. . . weigh heavily against a special election due to traditional low voter turnout, a
6 dearth of candidates, and costs); see also Bowes, 837 F.3d at 821 (holding a special election
7 within three months would generate significant costs, as the candidates would likely have to
8 campaign and fundraise, and the government would need to complete all of the necessary notices
9 and paperwork to add names to the ballot in a highly compressed timeframe). In all events,
10 Plaintiffs have raised serious questions as to the merits. Puente Ariz., 821 F.3d at 1103 n.4.
11 Those serious questions, combined with the harm to voting rights that Plaintiffs and other voters
12 will suffer absent an injunction, strongly favor the requested relief. Thus, the public interest and
13 the balance of the equities tip strongly in favor of a preliminary injunction.
14 IV. CONCLUSION
15 For the reasons stated above, Plaintiffs respectfully request that the Court issue the
16 requested preliminary injunction. A proposed order is submitted herewith.
17 Dated: November 6, 2017 WOLF RIFKIN SHAPIRO SCHULMAN & RABKIN, LLP
18 By: /s/ Bradley S. Schrager
Bradley Schrager, Esq.
19 3556 East Russell Road, Second Floor
Las Vegas, Nevada 89120
20
Marc E. Elias, Esq.
21 Jacki L. Anderson, Esq.
PERKINS COIE LLP
22 700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
23
Sambo Dul, Esq.
24 PERKINS COIE LLP
2901 N. Central Avenue, Suite 2000
25 Phoenix, Arizona 85012
26 Attorneys for Plaintiffs Nora Luna, Bilal Shabazz, Diane
Crump-Richmond, Susan Florian, and Demi Falcon
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 6th day of November, 2017, a true and correct copy
3 of PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM
4 OF POINTS AND AUTHORITIES was served via the United States District Court CM/ECF
5 system on all parties or persons requiring notice.
7 By: /s/ Christie Rehfeld

Christie Rehfeld, an Employee of
8 WOLF, RIFKIN, SHAPIRO, SCHULMAN &
RABKIN, LLP
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#17 Motion For Preliminary Injunction

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#17 Motion For Preliminary Injunction

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Case 2:17-cv-02666-JCM-GWF Document 17 Filed 11/06/17 Page 1 of 26

Marc E. Elias (D.C. Bar No. 442007)

1 Plaintiffs, NORA LUNA, BILAL SHABAZZ, DIANE CRUMP-RICHMOND, SUSAN

3 pursuant to Federal Rule of Civil Procedure 65 to enjoin Defendants BARBARA CEGAVASKE,

6 Joyce Woodhouse, Nicole Cannizzaro, or Patricia Farley.

7 MEMORANDUM OF POINTS AND AUTHORITIES

4 recall laws, to recall the State Senators in Districts 5, 6, and 8.

5 II. STATEMENT OF FACTS

16 the 2016 election. Dul Decl. Ex. 7 at 2.

25 B. Nevadas Recall Laws and Procedures

6 or malfeasance). Instead, only a statement . . . of the reasons why. . . recall is demanded,

4 Dec. Ex. 73 (Damore Rep.) at 17-18, 21-22.

5 C. The Impact of Recall Elections in Districts 5, 6, and 8

3 process. Dul Decl. Ex. 16 at 39.

14 exacerbate the obstacles to voting, particularly in off-cycle, special elections.

18 their time, attention, and resources to defending against an unjustified recall.

24 A preliminary injunction is also appropriate when a plaintiff raises serious questions as

4 961, 968 (D. Nev. 2016) (citations omitted) (emphasis added).

5 Plaintiffs meet all the requirements for issuance of a preliminary injunction.

6 A. Plaintiffs Are Likely to Succeed on the Merits

2 a. Recall Elections in Senate Districts 5, 6, and 8 Would Deny and

23 Decl. Ex. 16; Ex. 13 at 2; Exs. 14-15).

11 As Republican Governor Brian Sandoval concluded, there really [i]snt . . . a legitimate

22 wrongdoing. Recall proponents, which include former Republican Assemblyman Stephen

8 purpose of helping [political parties] win or retain voter support.).

16 exhibiting an escalation of tactics, which encourages mean-spiritedness. Dul Decl. Ex. 10 at

6 Section 2 of the VRA prohibits the enforcement of a voting qualification or prerequisite

14 their choice. 52 U.S.C. 10301(b).

15 [I]n examining the totality of the circumstances to determine whether a challenged

21 imposes a disparate burden on the electoral opportunities of minority as compared to

8 of the right to vote. 52 U.S.C. 10301(a).

18 political conditions to cause a discriminatory result, in violation of Section 2 of the VRA.

1 when a seemingly neutral voter identification requirement disproportionately impact[s] the

15 on counting out-of-precinct provisional ballots will disproportionately affect [African American]

16 voters) (citation omitted).

17 significantly condensed time frame.

18 b. Recall Elections in Districts 5, 6, and 8 Would Interact with

22 courts look to nine non-exclusive factors, known as the Senate Factors:

23 Factor 1: History of official and voting-related discrimination in the jurisdiction;

8 disproportionate burdens minority voters face are caused by or linked to a jurisdictions

17 i. History of Discrimination and Discriminatory Use of

20 to vote or otherwise participate in the democratic process.

21 Nevadas history of discrimination in voting and civic participation predates its

22 statehood. In 1861, Nevadas First Territorial Legislature prohibited African-Americans and

24 including African-Americans, Native Americans, and Asians, from appearing as witnesses

11 Cir. 1972). Educational discrimination also extended to language minorities. In 2008, a

13 Spanish while riding on school buses. Dul Decl. Ex. 31

21 Finally, Nevada has a history of discrimination in healthcare and economic opportunities.

1 ii. On-Going Effects of Discrimination and Lack of

5 Poverty: A disproportionate number of minorities in Nevada, including in Districts 5, 6,

1 Government Employment: Minorities are underrepresented in government employment

5 Healthcare: In 2014, 26% of Hispanics and 14% of African-Americans were uninsured,

17 minorities.); Ex. 27 at 27-30 (recognizing the greater socioeconomic barriers to voting of

22 including refusing to acknowledge discrimination. See Dul Decl. Ex. 52 at 1 (Nevada

1 iii. Racially Polarized Voting (Senate Factor 2)

2 Voting in Nevada, and in Districts 5, 6, and 8, is racially polarized, as a high percentage

6 Senate candidate Joe Heck. Dul Decl. Ex. 53 at 3.

13 designated as battlegrounds in 2008 for Democratic candidates.).

23 Nevadas African-American population also disproportionately supports Democratic

1 Similarly, voting in Districts 5, 6, and 8 is racially polarized, as the majority of minorities

5 American voters in the district.); Damore Rep. at 11-12, 19-21, 27-28.

6 iv. Racial Appeals in Political Campaigns (Senate Factor 6)

14 adviser described Senator Cortez-Mastos reference to her heritage as Hispandering. Id. at 5.